Citation NR: 9803178
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 94-49 618 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUES
1. Entitlement to service connection for degenerative disc
disease and residuals of compression fracture of the lumbar,
thoracic, and cervical spine.
2. Entitlement to a compensable evaluation for hiatal
hernia.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Vito A. Clementi, Counsel
INTRODUCTION
The appellant had active service from June 1965 to October
1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1994 rating decision of the
Seattle, Washington, Department of Veterans Affairs (VA)
Regional Office (RO).
In September 1996, the Board remanded the appellant’s case
for clarification and for further development of the record.
The Board noted that in a September 1995 Hearing Officer’s
decision, it was initially noted that a zero percent
disability rating for the appellant’s hiatal hernia had been
assigned. However, in the statement of the reasons and bases
for the decision, the Hearing Officer stated that the
appellant’s testimony regarding his symptoms was “consistent
with the ten percent evaluation currently assigned.” The
Board directed that upon remand, the intention of the hearing
officer was to be clarified as to whether he intended to
grant a 10 percent disability evaluation in his decision. By
memorandum dated August 1997, the hearing officer advised
that the reference to a 10 percent evaluation was in error,
and that it was his intention to affirm the zero percent
disability evaluation for the appellant’s hiatal hernia.
Examination of the appellant’s claims folder reveals that to
the extent possible, the RO completed the development of the
record as directed in the Board’s September 1996 remand, and
the case is ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant generally contends that his degenerative disc
disease and the residuals of compression fracture of the
lumbar, thoracic, and cervical spine had their onset during
his military service. The appellant further contends that
the symptomatology of his hiatal hernia is more severe than
that contemplated by his currently assigned zero percent
disability evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the appellant's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not
submitted a well-grounded claim of service connection for
degenerative disc disease and the residuals of compression
fracture of the lumbar, thoracic, and cervical spine. It is
further the decision of the Board that the evidence of
record supports the assignment of a 10 percent evaluation for
hiatal hernia.
FINDINGS OF FACT
1. While in military service, the appellant was treated for
mid-lumbar paravertebral muscle spasm in March 1966 and for
pain of the paraspinous muscles of the thoracic region in
December 1966; his spine was normal on the service discharge
examination and his prior back complaints were noted not to
have recurred and there were no complications or sequelae.
2. No competent medical evidence has been obtained which
links the appellant’s current degenerative disc disease and
the residuals of compression fracture of the lumbar,
thoracic, and cervical spine with any incident of service.
3. The appellant’s service-connected hiatal hernia is
manifested by recurrent pyrosis and regurgitation.
CONCLUSIONS OF LAW
1. The appellant’s claim of entitlement to service
connection for degenerative disc disease and the residuals of
compression fracture of the lumbar, thoracic, and cervical
spine is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The criteria for a 10 percent disability evaluation for
hiatal hernia have been met. 38 U.S.C.A. §§ 1155, 5107
(West1991); 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code
7346 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual and Procedural Background
The appellant’s service medical records reveal that in
February 1966, he was treated for heartburn. He described a
burning type pain, which he reported had been present for
years and had recently become more severe. He reported no
melena, vomiting, or nausea. Upon clinical examination, no
abdominal tenderness or masses were noted. An upper
gastrointestinal study revealed a wide esophageal hiatus and
a reflux occurring from the stomach into the lower esophagus,
occurring on several occasions when the appellant was prone.
The diagnostic impression was an incumbent hiatal hiatus.
The appellant was thereafter treated in November of 1966 for
heartburn, and the following month for gastroenteritis due to
unknown causes. In January 1968, the appellant reported
vomiting after eating. He reported that he had then vomited
blood. Clinical examination results were essentially
negative.
In March 1966, the appellant was seen for a complaint of back
pain and ‘pulled muscles,” which had been most painful for
the previous 2 days. Reportedly, he had strained his back 3
days earlier while using a screwdriver. The appellant
reported that his symptoms were beginning to subside.
Examination of his back revealed minimal to mild spasm of the
mid-lumbar paravertebral muscles. There was no tenderness to
percussion, and full range of motion was noted. A bed board,
aspirin, and heat were prescribed and the appellant was
placed on limited duties for two days.
In December 1966, the appellant complained of having awakened
with pain in the thoracic spine area, aggravated by movement.
Pain currently was in the left neck and shoulder. The
examiner noted that there was no tenderness. Full range of
motion of the appellant’s right arm and shoulder was noted.
Muscular pain of the paraspinous muscles was diagnosed.
In a September 1968 medical history questionnaire submitted
as part of his separation physical examination, the appellant
reported that he then had, or had had, recurrent back pain.
The examining physician noted the appellant’s treatment for
mid back pain, and noted that there were no recurrences,
complications or sequelae. Examination then revealed that
the upper extremities and spine were normal. The appellant
also reported that he had frequent indigestion.
Private medical records reflect that in February 1971, the
appellant had ulcer-like symptoms, and it was noted that the
appellant had had a hiatus hernia once in service. Antacids
and a diet were prescribed. In May 1973, the appellant had
low back discomfort. A separate entry, dated approximately a
week later, reflects that the appellant’s back was “better.”
An additional document dated July 1973 entitled “Case
History” is of record, reflecting the appellant’s complaint
as having “much” lower back pain.
A “Patient’s Progress” log reflects entries relating to
treatment for various complaints from July 1973 to March
1994. The author of these notes is not identified. However,
the earliest entry relative to the appellant’s back is dated
July 31, 1973, and reflects “L back sore yet.” None of the
entries relate symptomatology of any kind to any incident of
the appellant’s military service.
A July 1988 accident report claim for industrial insurance
reflects that the appellant complained of back and neck pain
when he bent over to pick up a wooden stake during employment
activities. Subluxation of C1, C2, L4 and L5 was diagnosed.
In the report, the examining physician responded in negative
to the inquiry as to whether there was any pre-existing
impairment of the injured area. In an application to reopen
his claim for industrial insurance, dated in July 1990, the
appellant reported that the date of his original injury was
July 1988. The examining physician, Harley D.G., D.C.,
opined that the diagnosis of vertebral subluxation of C1, C2,
L4, L5 and S1 was acute.
An August 1990 notice of decision from the State of
Washington Department of Labor and Industries reflects that
the appellant’s claim for benefits was reopened for
dislocation of the cervical and lumbar vertebrae.
In a June 1994 letter, Donald W.O., D.C. reported that the
appellant had a permanent vertebral subluxation complex of
the cervical, thoracic and lumbo-pelvic spine. Dr. O.
further reported that the appellant stated that his symptoms
began 20 years previously and had originated from work-
related causes. Dr. O. reported that radiographic evidence
revealed a complete loss of the cervical curve with moderated
degenerative joint disease of C4-C7, moderate hyperkyphosis
of the thoracic spine with possible compression fracture at
T6 and T7, moderate degenerative joint disease of T7-T12, and
marked loss of L5 disc space. Dr. O. did not relate the
appellant’s current disorders to any incident of his military
service.
The appellant underwent a VA examination in August 1994. The
appellant reported reflux symptoms, with a sour taste in his
mouth after a meal. He reported that he had heartburn for
which he took over-the-counter antacids. He reported that he
had never received medication for these symptoms.
During the August 1994 VA examination, the appellant also
reported neck and upper and lower back pain which he related
to an in-service accident in 1966 during a training exercise
in which he suddenly became stiff with a painful back. He
indicated that since then he had had chronic back pain
(usually low back but occasionally cervical), usually
associated with stiffness and weakness. Examination showed a
slight accentuation of lumbar lordosis but no other findings.
There was no paraspinal tenderness or fasciculations. X-ray
examination revealed a left lateral lower thoracic scoliosis.
Moderate compression of the T9 vertebral body anteriorly and
laterally on the right was noted. There was mild compression
also noted at T11 and to a lesser degree at T10 and T12. The
examiner opined that these compressions were of indeterminate
age but appeared to be old. Anterior compression of L2 was
also noted. Upon x-ray examination of the lumbosacral spine,
normal alignment was noted. There was anterior wedging of L2
vertebral body consistent with an old compression fracture.
Moderate degenerative disk disease was noted at the L5-S1
level. Radiographic examination of the cervical spine
revealed loss of the normal lordotic curve at the upper
cervical spine with mild angulation at C2-3. There was no
evidence of subluxation at that level. Disk space narrowing,
subchondral sclerosis, and osteophytosis were noted from
level C4 through C7, consistent with degenerative disk
disease. Mild retrolisthesis at C4-5 was also consistent
with degenerative disk disease.
A November 1994 statement from the appellant’s service
colleague, [redacted]O., was obtained. Mr. O. reported that
in March 1966, he was working with the appellant building
barracks. He recalled that as the appellant reached over his
head to emplace a screw above him, the appellant experienced
pain in his back. Mr. O. further reported that the appellant
was his roommate for approximately 9 months thereafter, and
that the appellant was frequently in lower back pain.
At a January 1995 personal hearing before a Hearing Officer
at the RO, the appellant testified that he injured his back
in service while attempting to install a screw above him. He
reported that he lunged and twisted, but that he did not
fall, and that he did not fall against anything.
(Transcript, hereafter, T. 2). He testified that he was
treated at the base hospital, and that he was issued a slat
board to sleep on for one week. He stated that he was placed
on limited duty for one week, but that he received no
physical therapy or medication for his back pain. He stated
that his back was always sore thereafter, but that there was
no “breathtaking pain.” (T. 3). He stated that after
discharge from service, he first consulted his family
physician, Dr. W., in the late 1969 to 1970 time frame for
what the appellant described as a chronic, sore back. Dr. W.
prescribed muscle relaxants and muscle massage therapy. (T.
4). The appellant stated that after Dr. W. retired, he
consulted an osteopathic physician for 2 or 3 visits. The
appellant stated that approximately in 1973, he began
consulting Dr. G., and in 1994, Dr. O., both chiropractors.
(T. 5). The appellant stated that since his discharge from
service, he had experienced industrial employment accidents.
He stated that while at work in 1988, he bent over to pick up
a stake and his back went out. (T. 6).
The appellant stated that his chiropractor had not indicated
what may have caused his present back problem, or made any
judgment about when his back problem may have occurred. (T.
8). Regarding the service medical entry of December 1966
regarding pain to his neck, shoulder, and upper back, the
appellant stated that he experienced pain and that it was
uncomfortable to lift his arms, turn his neck and bend. (T.
9). The appellant did not recall any specific precipitating
incident or activity. (T. 10).
With regard to his hiatal hernia, the appellant stated that
he had “just a burning sensation” which started in the pit of
his stomach, and which “just goes right up into the throat.”
He stated that he would then ingest Maalox or Mylanta, and
that would “put the fire out.” He stated that he avoided
acidic foods and that he had awakened several times in the
middle of the night with antacid backup. (T. 11). He stated
that he slept with a large pillow to help elevate his head to
keep his upper body elevated to avoid the antacid backup. He
stated that he had not consulted a physician for his hiatal
hernia since the mid-1970’s, and that his symptoms had gotten
“a little bit worse but not that noticeable.” (T. 12). To
the extent that he was having more difficulty with his hiatal
hernia, the appellant stated that his symptoms had awakened
him 2 or 3 times a night, 1 or 2 nights a week. (T. 13).
The appellant underwent a VA gastrointestinal examination in
October 1996. The appellant reported his symptomatology as a
burning sensation from the pit of his stomach to his throat.
He stated that his symptoms were helped with water, Maalox
and Mylanta. While he described having these symptoms for
30-40 years, he reported that his symptoms were then a “tiny
bit worse.” He reported that his weight had been static for
two years, and that he had experienced no dysphagia,
hematemesis, or other abdominal pain or gastrointestinal
symptoms. Upon clinical examination, he was noted to be
stocky, well-nourished, and in no distress. His abdomen was
noted to be normal except for an oblique right lower quadrant
appendectomy scar. His rectal and stool examination resulted
in normal findings.
The diagnostic impression was a hiatus hernia with
gastroesophageal reflux disease.
In November 1996, medical records were received from Dr. O.,
reflecting treatment of appellant’s back disorder from April
1994 to January 1996. However, there is no reference to any
incident of the appellant’s military service contained in Dr.
O.’s records. The record reflects that while the RO
requested medical treatment records from Dr. G., there was no
response to the RO’s November 1996 letter.
Analysis
Entitlement to service connection for degenerative disc
disease and
residuals of compression fracture of the lumbar, thoracic,
and cervical spine.
Under 38 U.S.C.A. § 5107(a), an applicant for benefits has
the “burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” Such a claim has been defined by the Court
to be “one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible” in order meet the burden established in the
statute. Kandik v. Brown, 9 Vet. App. 434, 439 (1996); See
Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).
In order for the appellant’s claim to be well grounded, there
must be competent evidence of a current disability; a disease
or injury which was incurred in service; and a nexus between
the disease or injury and the current disability. Caluza v.
Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d
604 (Fed.Cir. 1996)(table); See Watai v. Brown, 9 Vet. App.
441, 443 (1996).
Where the determinative issue involves either medical
etiology or diagnosis, competent medical evidence is
necessary to fulfill the well-grounded claim requirement.
Where the determinative issue does not require medical
diagnosis or etiology, lay testimony by itself may suffice to
meet the statutory burden. Caluza, 7 Vet. App. at 504;
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The
truthfulness of evidence is presumed in determining whether a
claim is well grounded. Meyer v. Brown, 9 Vet. App. 425, 429
(1996); King v. Brown, 5 Vet. App. 19, 21 (1993).
Having carefully examined the evidence of record in light of
the applicable law, the Board finds that the appellant’s
claim of entitlement to service connection for degenerative
disc disease and residuals of compression fracture of the
lumbar, thoracic, and cervical spine is not well grounded.
While competent medical evidence of a present disability has
been obtained, there is no competent medical evidence of
record establishing that the appellant’s current spinal
disorders are linked to his military service.
The Board notes that although service medical records refect
treatment for back complaints, neither degenerative disc
disease nor a compression fracture was noted in military
service. The appellant’s service medical records reveal that
he was once treated for pain of the mid-lumbar paravertebral
muscles, after twisting his back while performing military
duties. In January 1995, the appellant stated that he did
not fall, and did not fall against any object when he twisted
his back. Mr. O., the appellant’s service colleague,
confirmed the appellant’s account. The appellant’s service
medical records further reveal that he was treated on one
occasion for pain in the thoracic spine area, diagnosed as
muscular pain. In January 1995, the appellant stated that he
did not recall any incident which may have given rise to his
muscular pain in the thoracic spine. The appellant’s
separation examination report reflects that there was no
recurrence, complications, or sequelae of the in-service
problems, and that the appellant’s upper extremities, spine
and musculoskeletal system were normal.
The “Patient’s Progress” log reflects that in 1973, the
appellant apparently began treatment for unspecified back
problems, as well as other disorders. This log reflects some
back symptomatology beginning four years after the
appellant’s separation from military service. While the
Board notes that in January 1995, the appellant stated that
he began consulting his family physician, Dr. W., in late
1969 for what the appellant described as a chronic, sore
back, assuming that the log was authored by Dr. W., as is
noted the log’s initial entries are dated in May 1973.
Further, there is no information contained in the log
relative to medical diagnoses, or any information which
reflects a linkage between the appellant’s symptomatology at
that time to his military service.
Subluxation of the cervical and lumbosacral spine was
diagnosed by Dr. G. in July 1988, following an employment
accident. Dr. G. did not relate this finding to any incident
of the appellant’s military service. Of particular probative
value to this inquiry, the Board notes that in his report,
Dr. G. responded in the negative to the query as to whether
there was “any pre-existing impairment of the injured area.”
Dr. G.’s diagnosis was confirmed in June 1994 by Dr. O., who
also noted degenerative joint disease of the cervical and
thoracic spine. In addition, Dr. W.O. reported x-ray
findings of subluxation of the thoracic spine and evidence of
a compression fracture at T6 and T7. In his report, Dr. O.
reported that the appellant informed him that his symptoms
had been present for approximately 20 years, and originated
from work-related causes. In this respect, the appellant’s
account to Dr. O. is consistent with other evidence of record
because the earliest evidence of continued back
symptomatology is dated 1973, approximately 20 years earlier.
The Board notes that the August 1994 VA examiner opined that
the appellant’s vertebral compressions were of indeterminate
age and appeared to be old. Assuming the credibility of this
opinion, this evidence does not reflect that any compression
fracture occurred during the appellant’s military service
presumptive period, and the body of the examiner’s report
does not otherwise relate the appellant’s symptomatology to
any incident of his military service.
The appellant’s service colleague and roommate Mr. O.
reported that he was with the appellant in March 1966 when
the appellant experienced back pain, and that the appellant
experienced back pain thereafter. As a lay person, Mr. O. is
competent to report such apparent symptomatology. See Layno
v. Brown, 6 Vet. App. 465, 470 (1994). However, the Board
finds this information insufficient to render the appellant’s
claim well-grounded, as Mr. O. is not shown to be qualified
to determine the etiology of the appellant’s current spinal
disorders. Similarly, the appellant is competent to relate
symptomatology, but he is not qualified to render a medical
opinion regarding the etiology of his current spinal
disorders. and his opinion is entitled to no weight. Cromley
v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet.
App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140
(1994); Cox v. Brown, 5 Vet. App. 93, 95 (1993); Moray v.
Brown, 5 Vet. App. 211, 214 (1993); Fluker v. Brown, 5 Vet.
App. 296, 299 (1993); Clarkson v. Brown, 4 Vet. App. 565, 567
(1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992);
See Savage v. Gober, No. 94-503, slip op. at 15 (U.S. Vet.
App. Nov. 5, 1997).
In short, because the appellant has not submitted competent
medical evidence linking his current spinal disorders to any
incident of his military service, his claim is not well
grounded.
Entitlement to a compensable evaluation for hiatal hernia
Disability determinations are determined through the
application of a schedule of ratings, which is predicated
upon the average impairment of earning capacity. Separate
diagnostic codes ("D.C.") identify various disabilities. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria for that rating. Otherwise,
the lower rating will be assigned. 38 C.F.R. § 4.7.
The Board’s primary focus in this inquiry is upon the current
severity of the disability. Francisco v. Brown, 7 Vet. App.
55, 57-58 (1994); See Solomon v. Brown, 6 Vet. App. 396, 402
(1994); See also Ardison v. Brown, 6 Vet. App. 405, 407
(1994); Holland v. Brown, 6 Vet. App. 443, 447 (1994).
A hiatal hernia is rated as 60 percent disabling when there
are symptoms of pain, vomiting, material weight loss and
hematemesis or melena with moderate anemia; or other symptom
combinations productive of severe impairment of health. A 30
percent rating is assignable with persistently recurrent
epigastric distress with dysphagia, pyrosis, and
regurgitation, accompanied by substernal or arm or shoulder
pain, productive of considerable impairment of health. With
two or more of the symptoms for the 30 percent rating of less
severity, a 10 percent rating is assignable under D.C. 7346.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
The appellant was diagnosed with a hiatal hernia in service.
His symptoms included heartburn. While he reported vomiting
blood on one occasion, he did not report melena, continued
vomiting or nausea. The report of his physical examination
upon discharge reflects that the appellant reported frequent
indigestion. Shortly after service, in February 1971 the
appellant apparently complained of ulcer-like symptoms and
was advised to alter his diet and use antacids. During an
August 1994 VA examination, the appellant reported reflux
symptoms and heartburn. The appellant reported in January
1995 that he had a burning sensation in his stomach and
reflux, and that these symptoms had slightly worsened since
his discharge from service. In October 1996, the appellant
reported similar symptomatology, but no dysphagia,
hematemesis, or other abdominal pain or gastrointestinal
symptoms.
The Board finds that the evidence supports a grant of a 10
percent disability rating for a hiatal hernia. The appellant
has reported persistent recurring pyrosis and regurgitation,
two symptoms necessary for, but of less severity than that
necessary for the assignment of a 30 percent disability
rating under D.C. 7346. The appellant has not otherwise
reported dysphagia, substernal arm or shoulder pain, or other
persistent epigastric distress. Given these findings, the
assignment of a 30 percent disability rating is not
appropriate.
In particular, the Board emphasizes that it has only
considered the factors as enumerated in the rating criteria
discussed above. See Massey v. Brown, 7 Vet. App. 204, 208
(1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).
ORDER
Service connection for degenerative disc disease and
residuals of compression fracture of the lumbar, thoracic,
and cervical spine is denied.
A 10 percent disability rating for hiatal hernia is granted,
subject to controlling regulations applicable to the payment
of monetary benefits.
JANE E. SHARP
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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